Judicial Review of Legislative Action on the Touchstone of "Basic
structure" of the Constitution - Supreme Court in
I R Coelho (Dead) by LRs
case.
Recent Judgement of Supreme Court dated 11.01.2007 rendered in the case in
I R Coelho (Dead) by LRs Vs. State of Tamil Nadu and Others is a master
stroke of the judiciary. Prima facie, it is laudable for the reason, that
it is a unanimous judgement of Nine judge Constitution Bench of the
Supreme Court, unlike fractured earlier judgements on the point. In
Keshavananda Bharati Vs. State of Kerala (AIR 1973 SC 1461) which is
said to have first propounded the Doctrine of Basic Structure of the
Constitution, the Hon'ble 13 Judge Constitution Bench of Supreme Court
delivered 11 truncated / fractured judgements. Since 24th April 1973, the
date of the judgment of the Keshavananda Bharati case, the debate is, what
is the ratio decidendi, viz., the point of law laid down in the said
judgment. Fortunately, the present judgment of Supreme Court by providing
unanimous verdict saved the Nation from such turmoil of searching for the
ratio decidendi with magnified glasses. Fractured Judgements pains the
Nation a lot to understand what is the Law and much time and energy of
legal fraternity is spent on debating, interpreting and searching laws
from such truncated judgments. The whole of the present judgement is
devoted to understand and lot of pains have been taken to impress that
Doctrine of Basic Structure was propounded in Keshvananda Bharathi case.
Much effort is made to highlight and explain Justice Khanna's views in
Keshavananada Bharathi's case and as clarified by Justice Khanna in Indira
Gandhi case, since Justice Khanna's vote in favour of Basic Structure
Doctrine will give the much needed majority in its favour in Keshavananda
Bharathi's case. However the propriety and validity of the clarifications
provided by Justice Khanna in
Indira Gandhi case, whether the same clarification can be read into
Keshavananada Bharathi case, is a question to be answered. Now a days, it
is a welcome feature that most of the landmark judgments are unanimous.

An invisible amendment to the Constitution:

The present judgement of the Supreme Court has made historical analysis
since
A K Gopalan case up to this date and has brought out the development
of judicial construction of the Constitution and the Doctrine of Basic
Structure. 24th April 1973, the date of Judgement of Keshavananda Bharati
is made the cutoff date to test the legislative action on the touch stone
of Basic Structure Theory. All Laws passed, even if they are kept in IX
Schedule of the Constitution has to pass through the Basic Structure
Doctrine. By making 24th April 1973 as the cut off date, the Supreme Court
has admitted that they have propounded the said Doctrine of Basic
Structure from the said date. Its impact and its repercussions are very
serious to the Nation and it tells a lot on the amending powers of the
Constitution by the Judiciary itself. We find no written letters Basic
Structure in the whole of the Constitution and it is undoubtedly a
judicial invention.

Article 32 of the Constitution confers the power on the Supreme Court, for
the enforcement of any of the rights conferred by this part viz. Part III
of the Constitution and not beyond the same. No doubt, the said power is
apart from the powers conferred under Part V, chapter IV of the
Constitution. If there is a violation of fundamental rights in state
action, including legislative action, the same can be struck down under
Article 32 of the Constitution. The touchstone could only be the
Constitution and more specifically Part III of the same. Fundamental
rights are enshrined in the Constitution at the time of its adoption
itself. By making 24th April 1973 as cutoff date, judiciary admits
introduction of a new Chapter called Basic Structure to the Constitution,
to be a touchstone, to test the state action and it is in the nature of an
invisible amendment without inserting any letter to the Constitution.
Certainly, judiciary does not have powers to amend the Constitution, but
by propounding the Basic Structure doctrine as touchstone to test the
legislative actions and by evolving the same from Keshavananda Bharati
case to the present case and making the same as an enforceable doctrine,
the judiciary had exceeded its delineated powers. While holding on one
hand that the Parliament, while exercising constitutional amending power
under Article 368, cannot amend the Basic structure of the Constitution,
the judiciary has exactly done the same by usurping to amend the
Constitution by inserting the Basic Structure Doctrine in the
Constitutional Arena, without having even semblance of power to amend the
Constitution.

Basic Structure Doctrine is certainly an invisible amendment to the
Constitution or otherwise the date 24th April 1973 is irrelevant. The
Judiciary can have the Constitution as touchstone and not the doctrines,
theories, propounded later by the judiciary. The doctrines and theories
can only serve as tools to understand/ interpret the constitution. But
they themselves cannot be touchstones and replace the constitution. The
judiciary possibly, unconsciously made a theory, laid it as a touchstone
and put a cut off date, everything without introducing a word in the
constitution. Again, the big question is who can review the power of
judiciary to make such invisible amendments to the constitution. There is
no provision or mechanism spelt out in the Constitution to review the
judicial action by any independent organ, similar to judicial review of
legislative action read into Article 32 of the Constitution. At times,
legislature and the executive could only be helpless spectators of
judicial action. If the Supreme Court in the present case does not
restrict the date as 24th April 1973 things could have been possibly
different. The Supreme Court should have continued to have part III of the
Constitution as touchstone and not beyond.

Supreme Court in the present case has proclaimed at para 78 that ?this
Court being bound by all the provisions of the Constitution and also by
the Basic Structure doctrine has necessarily to scrutinize the Ninth
Schedule Laws? (emphasis added). By such assertion, the Supreme Court
openly admitted that they are bound by not only provisions of the
Constitution but also Basic Structure Doctrine and it evidences that Basic
Structure Doctrine is apart from the Constitution and not part of the
Constitution. Whether Article 32 of the Constitution from where Supreme
Court derives power, jurisdiction to enforce fundamental rights gives such
power to propound binding doctrines/ theories such as Basic Structure and
thereby introduce invisible amendments to the Constitution is a matter to
be debated further.

Interpretation of the constitution:

Another curious aspect of the Judgement is that theory of construction
propounded in para 59 of the Judgement which reads the constitution is a
living document, its interpretations may change as the time and
circumstances change to keep pace with it. The present judgement has
traced as to how the theory of interpretation / construction has undergone
metamorphosis from A K Gopalan case up to date. What applies to
interpretation of Constitutional Law equally applies to other Laws. That
means the constitutional law whose interpretation depends upon the change
of time, circumstances and other Laws, also remain in constant change mode
and is susceptible for change of meaning. But the dichotomy is as to
whether the legislature has to wait for the interpretation of the
Constitutional law by the judiciary and then pass legislation accordingly
inspite of change of times and circumstances or whether the legislature
has to presume the meaning and content of constitutional law due to change
of time and circumstances and enact laws and wait for the judiciary to
authenticate the same.

Theory of Checks and Balances:

Theory of checks and balances are referred to at paragraphs 24 and 75 of
the Judgment and Separation of powers are referred to at Paragraph 35. It
is also stated that Separation of powers is also one of the component of
Basic structure. As against Executive power, checks and balances
are exercised by the Judiciary as well as the Legislature. As against the
Legislature, it is exercised by the Judiciary. Above all, the Executive
and Legislative actions are amenable to severe public criticism and their
actions may be a doom's day and incur public wrath resulting in
overthrowing them out of power. The Legislature is also accountable for
the actions of the Executive, since virtually the party in power controls
the Executive. But there are no Checks and Balance on the Judiciary and
the theory of Checks and Balance does not cover equally vital wing. No
doubt, the Higher Judiciary may be amenable for impeachment which is
seldom resorted. Unlike Executive and Legislative actions, the Judicial
action is not amenable for criticism of such tone and tenor, in view of
contempt of court laws.

Having submitted the above, when we consider in the broader perspective as
to whether the Judiciary is right in going beyond the constitution and the
answer could only be in the Positive. It is for the simple reason that the
Constitution is not all pervasive and it cannot encompass all
eventualities.

Furthermore, the Constitution is only declaratory of what was already
inherent in the society. Prior to the constitution and even before the
advent of the English and Western theories, no one can say that there was
lawlessness and laws came only with the English.

Dominating Western ideologies:

It is unfortunate to note that there was no reference to the cultural
ethos of this country in the above judgment and reference and inspiration
is sought only from Western ideologies. The whole friction arises out of
the Separation of Powers enshrined in the constitution based on Western
theories which are not in tune with Indian politico-legal systems. As per
Indian genesis, the Executive and the Judiciary goes together and vests in
the same Institution and the Legislature was independent institution
unconnected with the power structure. The Legislature was mainly taken
care of by the noble and the learned.
Another aspect of the judgment is repeatedly telling that the constitution
is a living document and it was made out of extensive deliberations. This
assertion is questionable. The draft constitution was prepared by Shri B N
Rau, within a month's time referring to Irish, Canadian and other Western
Constitutions. Virtually there was no deliberation before or after
drafting the constitution and the nature of the Polity and the
institutions the country has to adopt. The native genius institution of
Panchayat Raj was not even discussed. Democracy, Parliamentary form of
Government and adult franchise were taken for granted without any
deliberations. The present constitution was admittedly adopted out of
expediency. The philosophy and ideology was provided by the Objective
Resolution which was again pushed through.

The temporary feature of the Constitution then evolved, is borne out by
the words of Jawaharlal Nehru himself in the Book Jawaharlal Nehru's
speeches 1946 - 1949 Second edition Reprinted Oct 1963 - Page 23,24).

The relevant portion is extracted hereunder:

we shall frame the constitution and I hope it will be a good constitution,
but does anyone in this house imagine that when a free India emerges it
will be bound down by anything that even this House may lay down for it? A
free India will see the bursting forth of the energy of a mighty
nation...but I do know that it will not consent to be bound down by
anything. Some people imagine that what we do now may not be touched for
ten years or twenty years; that if we do not do it today, we shall not be
able to do it later. That seems to me a complete misapprehension.... It
may be that the Constitution this House frames may not satisfy an India
that is free. This House cannot bind down the next generation or the
people who will duly succeed in this task. Therefore, let us not trouble
ourselves too much about petty details of what we do; these details will
not survive for long, if they are achieved in conflict.
Mahatma Gandhi, in his Hind Swaraj - .Edition , Page commented
contemptuously against the British parliament and similarly against the
legal system. None of the native thoughts are given consideration while
adopting the polity and the Institutions. For whatever we opposed the
English, we simply copied the same and continue to glorify the same

To cap it all, an observation made by Jawaharlal Nehru in his Discovery of
India go on to establish that what vision he propagated in his writings
turned topsy-turvy in his implementation. In Discovery of India by
Jawaharlal Nehru Ninth Edition 1989 page 302, Nehru has expressed that
until the advent of British, India had retained socio-political and
economic roots intact. In his words;

"....She had never lost her independence, never been enslaved. That is to
say, she had never been drawn into a political and economic system whose
centre of gravity lay outside her soil, never been subjected to a ruling
class which was and which remained, permanently alien in origin and
character. Every previous ruling class, whether it had originally come
from outside or was indigenous, had accepted the structural unity of
India's social and economic life and fitted into it."

The Nehru of this ideology, who considered British Socio-political and
economic system alien ha d gone to adopt the very same system when it was
in his hands to frame the Constitution,. What an Irony!

The malady lies elsewhere and we have not turned our eyes towards the said
right direction, for the cure. The present constitution could only lead to
pitfalls and not solutions and guidance.

Agrarian Reforms purpose served

The present judgment is with reference to Ninth Schedule of the
constitution. Ninth Schedule was created to safeguard populist and self
centered laws. It was originally intended for Agrarian reforms and the
Judiciary has upheld the same since the Agrarian reforms were taken for
granted as the socialist thought was permeating the English educated. The
result of Agrarian reforms is that agrarian society is virtually killed.
Large tracks of land are lying unproductive and it has resulted in massive
urbanization and concentration of wealth in the urban centres, which
remains un-addressed, even after years of its introduction. The poor
became still poorer. The agriculturist is called the Landlord but they
were made victims of vicious propaganda. The word agriculturist became
synonymous with illiterate, innocent, helpless, poor creatures who are
looked down. The result is, no one is prepared to be an agriculturist or
the landlord and people are in run to urban centres at the first
opportunity. In fact as per our Indian culture and institutions, one used
to have right to possess and enjoy the property and does not have absolute
right to alienate and to speculate. .With the introduction of Ryotwari
system, during Munroe's period by the English, the property was made a
marketable commodity, which is creating havoc. This again is evidenced in
Jawaharlal Nehru's discovery of India in page 303 wherein he has stated.

A more direct blow came from the introduction of the landlord system,
changing the whole conception of ownership of land ... the British
Governors, themselves representing the English landlord class , introduced
something resembling the English system in India. ...the village community
was deprived of all control over land and its produce; ...this led to
break down of joint life and corporate character of the community.

It is a pity that what Nehru could visualize as an outsider, he failed to
implement when he was given the authority to do. In fact he played right
into the hands of British by copying their system and allowing the evil to
continue. Or possibly it could have been with the fond hope that
independent India which he expected to be mighty and energetic will come
out of its own indigenous and better road map. This hope is yet to be seen
as reality. In fact we do not even see rays of it still.

Concluding thoughts:

The Ninth schedule has become vote catching device and with such
intentions the Legislature misused the same. Then the Judiciary invented
the device of Basic Structure. Doctrine to scuttle the designs of the
Legislature. Such real issues has to be addressed by the society with open
mind. The real issue lies in political system, which necessitates constant
appeasing of vote banks and unless the same is addressed, the political
clan will continue to upload Ninth schedule or find such other ways and
means to outwit.

Basic Structure Doctrine is the reply to the dubious steps adopted to
misuse the Ninth Schedule and the judgment as a whole is laudable.